Court Affirms Dismissal of Vacationing Employee’s FMLA Claim

On October 31st, the United States Court of Appeals for the Fourth Circuit affirmed a Virginia federal court’s dismissal of an airline employee’s FMLA retaliation claim.  The case arose when United Airlines fired the employee for using intermittent FMLA leave to excuse his failure to work the one shift he was scheduled to work during a lengthy vacation.  Sharif v. United Airlines, et. al., No. 15-1747 (4th Cir. 10/31/16).

According to the court’s opinion, Massoud Shariff was a 24 year UAL employee based out of Dulles Airport near Washington, D.C. In March 2014, he and his wife took an 18 day vacation to South Africa.  However, Mr. Shariff was scheduled to work two customer service shifts during the vacation – on March 30th  and 31st.  Significantly, despite being scheduled to work, Mr. Shariff had not made any advance reservations to return to the United States.

Using UAL’s shift swap website, Mr. Shariff found someone to work his March 31st shift, but he struck out in his attempt to get coverage for March 30th.   Mr. Shariff had previously been authorized to take intermittent FMLA leave for panic attacks and – lo and behold – he just happened to have a panic attack the day before he was supposed to be back at work at Dulles. While still in South Africa, he called UAL at 1:00 a.m. Washington time March 30th  (the morning of the day he was supposed to be in to work) and left a message stating his would not be coming in.   Though he was ostensibly debilitated by his panic attack and unable to work that day, he and his wife did manage to fly from Cape Town  to Milan, Italy to visit his niece.

Not surprisingly, UAL found it to be suspicious that Mr. Shariff had a panic attack during the one and shift he was scheduled to work in the midst of an extended leave period. UAL conducted an investigation and ultimately fired Mr. Shariff, concluding he has fraudulently taken FMLA leave and lied during the investigation.

Mr. Shariff brought suit under the FMLA, alleging he was fired in retaliation for taking FMLA leave. The United States District Court for the Eastern District of Virginia granted summary judgment to UAL. Mr. Shariff appealed the dismissal to the Fourth Circuit, which affirmed the grant of summary judgment. The appellate court took note of the fact that UAL had approved every request Mr. Shariff had ever made for FMLA leave, granting him 56 days of leave in a two year period. The Court found that this “is not the record of a company that is historically hostile to FMLA leave in any discernible way.”

The Fourth Circuit’s decision in Shariff shows that there are fact patterns where leave abuse seems so obvious that an employee can be terminated for use of leave. However, employers should keep in mind that UAL did an exhaustive investigation, Mr. Shariff was represented by his union, and the company’s conclusions were  supported by an extensive electronic trail of evidence. As a general rule, employers must proceed with extreme caution when firing employees because of their use of FMLA leave.

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